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9.-20 Feb., 1869.-Caledonian Railway Company v. Fleming.
The Railway Consolidation Act excludes all review by superior court of proceedings before justices. Justices dismissed a complaint for a railway offence because of delay in bringing the complaint. The Court of Justiciary, notwithstanding the clause of exclusion, recalled the judgment and remitted to the justices to hear and decide the case Per Lord Justice General (Inglis.)
—"No principle is better fixed than that a judge is bound to exercise his jurisdiction when properly called upon to do so by a person having an interest. If he refuses he commits an excess of jurisdiction. Their refusal is as much an excess of jurisdiction as if they had gone beyond the statute altogether."
10.-23 Feb., 1869.— Thomas v. Waddel.—41 Jurist, 296.
A friend, to facilitate the settlement of a bankrupt, agreed to pay a creditor a sum on the bankrupt obtaining his discharge, on condition that the creditor gave up a preferable claim on the estate. In an action for payment, held that the arrangement, though unknown to the bankrupt, and the general body of creditors was illegal and so could not ground an action. Per Lord Justice Clerk (Moncrieff). “I do pot think there is anything in the case which can lead us to the conclusion that the nullity is to apply only where the estate is diminished or the interest of the creditors affected in the amount of estate to be distributed, to force a composition contract on unwilling creditor is a strong act of legislative authority which can only be gratified on the assumption that the vote of the majority is freely and purely given.”
11.—25 Feb., 1869.- Pearce Brothers v. Irons.-41 Jurist,
Engineers furnished a pinion to a mill-owner. The price was paid. It did not work satisfactorily and was repaired. After fourteen months the pinion broke because of defective construction. The engineers then supplied a new pinion. In an action for the price-Held, they could not recover.
Per Lord President (Inglis)“ This is not the case of goods sold and delivered.
When a man buys goods, pays for them, and takes delivery, there is an end of all controversy, and he cannot afterwards raise the question whether the other party has fulfilled the contract, unless a latent imperfection in the article has been subsequently discovered. But these principles are not applicable in the case of machinery. You cannot tell whether it is efficient till it has been tried, and that can only be done on the premises, where it is intended to work, and accordingly it often happens after machinery has been erected it goes well for a 316
Digest of Scotch Cases of General Application.
time, but afterwards shows defects, which the party who has furnished is bound to remedy."
12.-3 March, 1869.-McIsaac v. MacKenzie.41 Jurist, 323.
The Militia Act (17 & 18 Vict. c. 106, s. 36) exempts from assessment buildings for keeping militia stores. An assessment for poors' rates was laid on buildings rented for that purpose. Plea for the assessment, that the exemption only applied to public buildings and not to private property, which would be conferring a benefit on an individual. Held (Lord Kinloch dissenting) that the exemption applied. Per Lord Deas—“The place is neither to be valued nor assessed if it be a place provided for keeping militia stores.” Per Lord Kinloch— " The assessment is on the owner or occupant respectively in respect of the property. When the commissioners of supply purchase the property, and it is occupied by the militia, they will be free from assessment as owners or occupants. When they merely rent the premises they will be free from the occupant's assessment. But the owner, of whom the property is held, will be held liable to the owner's assessment just as before.”
Notices of New Books.
[*** It should be understood that Notices of New Works forwarded to us for Review, and which appear in this part of the Magazine, do not preclude our recurring to them at greater length, and in more elaborate form, in a subsequent Number, when their character and importance require it.]
Commentaries upon International Law. By Sir Robert Phillimore,
D.C.L. Vol. I. Second edition. London : Butterworths. 1871. Of no time in the history of Europe may it be more truly said than of the present, that International Law, regarded simply as the jus gentium to which civilised nations should be anxious to yield obedience, is on its trial. Nor can it be said that its influence is now felt as of much account with even the most advanced nations. The apparent open disregard of the binding authority of treaty engagements, as shown by the recent notes of the Russian Chancellor on the Black Sea question, and that of Count Bismarck in the matter of Luxembourg; the predominance of purely physical force in the determination of international differences ; the apparent futility of efforts made to bring belligerent States to an agreement by more pacific methods; all these facts point to the paramount need of advancing, if it be possible to advance, the Public Law of Nations to that position which would enable it to force upon States in their mutual intercourse, the recognition of, as Sir R. Phillimore expresses it, the external obligations of justice.
We therefore welcome with much satisfaction the appearance of a second edition of Sir R. Phillimore's well known work upon International Law, re-edited in view of recent events, and with the object of showing, as the learned author observes in the preface, that how
violence, oppression, and sword law,” may now prevail in part of Europe, the belief of mankind ought not to be shaken, but should still rest upon justice, the common concern of all men, the only true policy of all States. The authority of this work is admittedly great, and the learning and ability displayed in its preparation have been recognised by writers on public law, both on the Continent of Europe and in the United States. Still it is a question whether it has yet attained that prominence as a Commentary upon the jus inter gentes which its merits ought perhaps to have secured for it, and which has obtained for the work of Wheaton, for example, so wide a celebrity. We proceed, however, to give in outline some account of the subjects of which the present volume treats ; to do more is not practicable within the limited space at our disposal.
The internal and external relations of States with each other gene
rate, as in the case of individuals, certain rights and obligations, which, as forming the basis of International Law, it is the object of the introductory portion of the book to illustrate and define. These lead to the chief division of the entire subject into the departments of Public and Private International Law respectively, the latter term being co-extensive with that of comity, or the relations to be observed towards the individual members of a foreign State. As regards the Public Law, binding on civilised communities viewed as moral persons, its origin is, as in the case of individuals, derived from the Divine law-leges Divine-as its primary, and positive legal institutions as its secondary, source. And it is with much research, and an almost eager display of learned quotation, that Sir R. Phillimore illustrates * his position—not, we may remark, by any means one universally conceded—that these sources of law were recognised by civilised nations of old as binding on them in their international relations, though in the case of the Roman Empire the statement may be accepted with greater certainty than with other ancient communities. The presence, however, and influence of the Divine, or rather the Christian element in the Law of Nations, has probably led, though not to the extent attributed to it by Sir R. Phillimore, to the morality of treaties and international usages being largely increased, many customs being now regardeil as outrages on the Law of Nations which in less civilised times were allowed, or openly insisted on, as legitimate incidents to belligerency, or to contractual obligations formed in time of peace.† The historical value of the Roman Civil Law too, as explanatory of the terms and sense of treaties and the language of jurists, is illustrated in the work before us by copious citations from the opinions of civilians and the judgments of Courts of Maritime Prize ; and the great influence which custom has upon the rights and duties of States—an example of which is to be found in the principle of reciprocity, so remarkably enforced by Sir W. Scott in two of his most celebrated decisions -meets with full discussion.
Leaving the chapters which treat of the sources from which the Law of Nations springs, we come (Pt. II., ch. i.) to the subject-matter with which chiefly the Law of Nations deals, namely Sovereign States, the, as Sir R. Phillimore expresses it, “proper primary and immediate subject of international jurisprudence.” The origin of these societies, how they are defined, the conditions with which they must comply in order to be regarded as independent, and the incidents to the subordinate position of those communities which exist in a greater or less degree of subjection to more powerful States, these questions, together with that (ch. vii.) of changes in a State, are here discussed, though rather more in the spirit of one who has prepared a careful Digest of the law, than in the light of international
* Ch. iii, sec. 24.
+ See this question examined from a different point of view by Mr, Austin, Jurisprudence, Vol. I., pp. 178, et seq.
† The Heinrich and Maria, 4 Rob. Rep., 54. The Santa Cruz, 1 Rob., p. 65. See also the Maria, ibid., p. 350; Phillimore, Vol. I., p. 40.
jurisprudence. And yet the subject is one which admits of, and, indeed, invites a more philosophical treatment. The Swiss Cantons, the (late) Germanic Confederation, the United States, and the Central and South American Republics, exhibit so many separate varieties of the original type of sovereign or independent State, though each distinguished from the other, and also from that form of government known by the name of empire or monarchy, by the presence to a greater or less degree of the principle of federation, which serves to modify—at least, as far as domestic administration extends—the normal conception of an independent State. But it is impossible not to observe that Sir R. Phillimore contents himself with giving but an historical analysis, no doubt very complete, of these several species of national life, and a citation more or less exhaustive of the opinions of writers who have treated of them,* without attempting to point out to the student that higher and more philosophical method of investigation, which would lead him to inquire into the principles which underlie the surface of these societies, and which impose upon them the need, of which, perhaps, they are themselves unconscious, of selecting, in order to the independence of their national existence, one form of government rather than another.
The volume before us proceeds to deal, after noticing questions connected with rivers, straits, and inland seas as subjects of public property, with the important and interesting subject of acquisition, or the mode in which an accession of territory, previously subject to a foreign country, or a territory hitherto unoccupied, is acquired by a sovereign State, although we think that here also a reference to the important view taken of this doctrine by Mr. Maine in his work on “ Ancient Law” (ch. viii. p. 244), might properly have found a place. But the extracts given from the more prominent treaties, and those conventions through which this department of jurisprudence has been given effect to, and by which it has entered into the actual transactions of mankind, add much to the value of the work as a book of reference, and are in fact, as we remarked of the earlier portion of the volume, a Digest of the Law of Nations on the subject. Our space only allows us to mention that in proceeding to discuss (ch. xviii.) the right of jurisdiction over persons, Sir R. Phillimore notices the important question of naturalisation, and refers to the recent Act passed last Session for amending the law relating to the legal condition of aliens and British subjects. The volume ends (Part IV.) with an instructive and learned chapter on Intervention, in connection with the Right of Self Defence, and the Preservation of the Balance of Power, in which the student will find an outline of the recent history of this latter question, together with a summary of diplomatic papers, and of the opinions of those writers who have treated of the doctrine. And with this necessarily imperfect sketch
* Among which, however, the works of Mr. Austin find no place, an omission for which, on any theory of the work, it is difficult to account. The student should consult the chapters upon the Constitution of Sovereign States-Jurisprudence, Vol. I., pp. 268, et seq.
* 33 Vict. c. 14, passed May 12, 1870,